Levesque v. Dominy

Filing 15

MEMORANDUM-DECISION and ORDER - That Magistrate Judge Christian F. Hummel's August 4, 2014 11 Report-Recommendation and Order is ADOPTED in its entirety. That Levesque's 8 and 9 amended complaint is DISMISSED without prejudice. That Levesque's 14 Motion to Appoint Counsel is DENIED. That the Clerk close this case. Signed by Chief Judge Gary L. Sharpe on 4/28/2015. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
ANDRE LEVESQUE,
Plaintiff,

8:14-cv-298
(GLS/CFH)

v.
CLINTON COUNTY NY et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Andre Levesque
Pro Se
09857-082
MCFP Springfield
Federal Medical Center
Inmate Mail/Parcels
P.O. Box 4000
Springfield, MO 65801
Gary L. Sharpe
Chief Judge

MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff pro se Andre Levesque commenced this action against
defendants Clinton County NY, John and Jane Does, Clinton County

Correctional Facility, Sgt Dominy, and Sgt Gravelle,1 presumably pursuant
to 42 U.S.C. § 1983,2 alleging no discernable claims, but complaining
generally of “conspiracy,” “abuses,” “slander,” “torture,” and “something
sinister.” (See generally Am. Compl., Dkt. Nos. 8, 9.) He seeks relief in
the form of medical marijuana and one-hundred million dollars, “preferably
in Euros.” (Id. at 8.)
In a Report-Recommendation and Order (R&R) issued on August 4,
2014, Magistrate Judge Christian F. Hummel, upon an initial review of
Levesque’s amended complaint pursuant to 28 U.S.C. §§ 1915 and 1915A,
recommended that Levesque’s amended complaint be dismissed without
leave to amend. (Dkt. No. 11.) Pending are Levesque’s objections to the
R&R.3 (Dkt. No. 12.) For the reasons that follow, the court adopts the
R&R in its entirety.
II. Background
A.

Facts

1

The Clerk is directed to amend the caption to reflect that the aforementioned
defendants are parties to this action.
2

In his amended complaint, Levesque states that he “do[es] not know what statute to
file under.” (Am. Compl. at 1, Dkt. Nos. 8, 9.)
3

The court notes that Levesque has also filed a motion to appoint counsel. (Dkt. No.
14.) This motion is denied.

2

Levesque is an inmate, and, it seems, during the time relevant to his
claims, was incarcerated at Clinton Correctional Facility. (See generally
Am. Compl.) What is known about the factual underpinnings of
Levesque’s claims essentially ends there. Further, from what the court can
glean from Levesque’s amended complaint, many of the actions about
which he complains occurred in 2009, including being held in isolation
without a disciplinary report and being “slandered.” (Id. at 3.) The rest of
his amended complaint includes a hodgepodge of events which Levesque
describes only in the most conclusory ways, without providing any factual
context. For example, Levesque claims that “Sgt Gravelle led an ass[a]ult
and Sgt Dominy helped him destroy evidence and cover up [a]buses,” and
that “[i]n January of 2013 [he] was returned to [Clinton] . . . by [H]omeland
Security with internal injur[ie]s [that he] sustained during torture and [was]
left for dead.” (Id. at 3-5.)
B.

Procedural History
Levesque filed a complaint on March 17, 2014, along with a motion

for leave to proceed in forma pauperis (IFP). (See generally Compl., Dkt.
No. 1; Dkt. No. 2.) In a prior R&R, filed on March 21, 2014, Judge Hummel
granted Levesque’s IFP application, but, after an initial review of
3

Levesque’s complaint pursuant to 28 U.S.C. §§ 1915 and 1915A,
recommended that Levesque’s complaint be dismissed with leave to
amend. (Dkt. No. 3.) In so recommending, Judge Hummel noted that,
given Levesque’s utter failure to comply with basic pleading requirements,
“it [was] impossible . . . to decipher under what basis Levesque is
attempting to bring suit, how the named defendant was involved, how
Levesque was harmed, or what relief is being sought,” and instructed
Levesque, if he chose to file an amended complaint, “to allege specific
facts sufficient to plausibly state that the named defendant deprived him of
constitutional or statutorily protected rights.” (Id. at 4-5.)
This court adopted Judge Hummel’s first R&R and instructed the
Clerk to return the file to the court for further review upon the filing of an
amended complaint. (Dkt. No. 4.) Thereafter, Levesque filed an amended
complaint, which was returned to Judge Hummel for another initial review.
Upon initial review of Levesque’s amended complaint, Judge Hummel
recommended that the amended complaint be dismissed, and, given its
incurable deficiencies, that Levesque not be afforded a second opportunity
to amend. (Dkt. No. 11 at 2-3.) Levesque then filed objections to the R&R,
(Dkt. No. 12), which the court now considers.
4

III. Standard of Review
Before entering final judgment, this court reviews report and
recommendation orders in cases it has referred to a magistrate judge. If a
party properly objects to a specific element of the magistrate judge’s
findings and recommendations, this court reviews those findings and
recommendations de novo. See Almonte v. N.Y. State Div. of Parole, No.
Civ. 904CV484GLS, 2006 WL 149049, at *3, *5 (N.D.N.Y. Jan. 18, 2006).
In those cases where no party has filed an objection, only vague or general
objections are made, or a party resubmits the same papers and arguments
already considered by the magistrate judge, this court reviews the findings
and recommendations of the magistrate judge for clear error. See id. at *45.
IV. Discussion
In his R&R, Judge Hummel recommended that Levesque’s amended
complaint be dismissed without leave to amend because Levesque again
failed to meet the most basic pleading requirements, and, to the extent that
the court could extrapolate a cognizable claim, it occurred in 2009, and
was time-barred under the three-year statute of limitations governing
claims brought pursuant to § 1983. (Dkt. No. 11 at 2-3 (citing Murphy v.
5

Lynn, 53 F.3d 547, 548 (2d Cir. 1995).)
Here, construing his objections liberally, Levesque objects to Judge
Hummel’s application of the three-year statute of limitations and requests
that the court extend the statute of limitations governing his claims that
arose in 2009. (Dkt. No. 12 at 2-3, 5-6.) Alternatively, Levesque seeks to
amend his complaint a second time “to reflect only what transpired at
[Clinton] . . . from March 2012 [to the] present,” and to add defendants.
(Id. at 1, 4-7.) These are specific objections, which the court reviews de
novo. See Almonte, 2006 WL 149049, at *3, *5.
First, regarding Levesque’s argument concerning the application of
the statute of limitations, federal courts borrow the state law personal injury
statute of limitations period for purposes of filing § 1983 actions. See
Wallace v. Kato, 549 U.S. 384, 387 (2007). In New York, unless the
limitations period is tolled, a plaintiff must file his § 1983 civil rights action
within three years of the accrual of each cause of action. See Owens v.
Okure, 488 U.S. 235, 250-51 (1989); see also N.Y. C.P.L.R. § 214(5).
Generally, a cause of action accrues when “the plaintiff knows or has
reason to know of the injury which is the basis of his action.” Covington v.
City of N.Y., 171 F.3d 117, 121 (2d Cir. 1999) (internal quotation marks
6

and citation omitted). However, “[i]n ‘rare and exceptional’ cases, the
doctrine of equitable tolling or equitable estoppel may be invoked to defeat
a defense that the action was not timely filed.” Russo v. Duprey, No. 9:12CV-1815, 2014 WL 948851, at *1 (N.D.N.Y. Mar. 11, 2014) (citing Abbas v.
Dixon, 480 F.3d 636, 642 (2d Cir. 2007)). Equitable tolling may apply
where “‘necessary to prevent unfairness to a plaintiff who is not at fault for
h[is] lateness in filing,’” as long as a plaintiff’s factual allegations are “plead
with some degree of specificity.” McFadden v. Wilhelm, No. 03 Civ. 8341,
2007 WL 1225345, at *8 (S.D.N.Y. Apr. 24, 2007) (quoting Veltri v. Bldg.
Serv. 32B-J Pension Fund, 393 F.3d 318, 322 (2d Cir. 2004)). Here,
Levesque essentially asks the court to toll the statute of limitations, arguing
that he has “been systematically denied fair access to the courts,”4 and
placed in isolation, which “has had [an immense] impact on [his] ability to
prosecute any claims.” (Dkt. No. 12 at 1-2.) However, aside from these
conclusory and general allegations, Levesque has not explained how he

4

Seemingly, Levesque also indicates, for the first time, that he has a First Amendment
access to the courts claim, (Dkt. No. 12 at 2-3, 6)—although there are not even murmurings of
such a claim in either his complaint or amended complaint. However, “[i]t is well settled that a
litigant may not raise new claims not contained in the complaint . . . in objections filed in
response to a Magistrate Judge’s report and recommendation.” Bermudez v. Waugh, No.
9:11-CV-0947, 2013 WL 654401, at *6 (N.D.N.Y. Feb. 21, 2013). Accordingly, the court does
not consider that potential claim here.

7

was prevented from filing suit, and the court therefore declines to toll the
limitations period. See McFadden, 2007 WL 1225345, at *8 (holding that
equitable tolling did not save the plaintiff’s stale claims where he did not
“give any specifics about[ his] claim that he was unable to file suits related
to his alleged constitutional violations while in [the special housing unit]”).
Second, Levesque requests leave to amend his complaint a second
time to include only claims that arose after March 2012 and to add
defendants. (Dkt. No. 12 at 4-5, 6.) While leave to amend a complaint
should be freely given “when justice so requires,” Fed. R. Civ. P. 15(a)(2),
it is “within the sound discretion of the district court to grant or deny leave
to amend,” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d
Cir. 2007). Further, although courts should generally grant pro se plaintiffs
leave to amend “at least once,” they should do so only “when a liberal
reading of the complaint gives any indication that a valid claim might be
stated.” Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir.
1999) (internal quotation marks and citation omitted). Here, the court
declines to grant Levesque leave to amend. As an initial matter, he has
already been given one opportunity to amend, and was instructed to
provide more factual detail, but failed to do so. (Dkt. Nos. 3, 4.) Moreover,
8

the court is not satisfied, after a liberal reading of Levesque’s amended
complaint, that a valid claim could possibly be stated. Further, although
Levesque states that he wishes to add defendants, he neither identifies
those defendants nor provides any facts related to their alleged
wrongdoing. (Dkt. No. 12 at 1, 5.) Accordingly, the court declines to grant
Levesque leave to file a second amended complaint, and the portion of the
R&R recommending dismissal without leave to amend is adopted.
Finally, consistent with the standards set forth in Almonte, 2006 WL
149049, at *3-5, the court has carefully reviewed the remainder of the R&R
for clear error, found none, and adopts it in its entirety.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Magistrate Judge Christian F. Hummel’s August 4,
2014 Report-Recommendation and Order (Dkt. No. 11) is ADOPTED in its
entirety; and it is further
ORDERED that Levesque’s amended complaint (Dkt. Nos. 8, 9) is
DISMISSED without prejudice; and it is further
ORDERED that Levesque’s motion to appoint counsel (Dkt. No. 14)
is DENIED; and it is further
9

ORDERED that the Clerk close this case; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
April 28, 2015
Albany, New York

10